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war; and in a doubtful case, to act alike to both sides, in permitting transit, in supplying provisions, in not helping persons besieged.1
So recent and great an authority as Westlake practically indorses this view.
The general duty of every member of society is to promote justice within it, and peace only on the footing of justice, such being the peace which alone is of much value or likely to be durable. Thus in a state the man would be a bad citizen who allowed a crime to be committed before his eyes without doing his best to prevent it, or who refused to assist the magistrates in punishing crime; and in the society of states the action of all the members in upholding its laws is the more required since an organized government is wanting. . . . We may sum up by saying that neutrality is not morally justifiable unless intervention in the war is unlikely to promote justice, or could do so only at a ruinous cost to the neutral.2
Most publicists agree that the conception of "benevolent" neutrality is foreign to international law. This is entirely true from a purely juristic standpoint, for a state which was "benevolently" neutral in the observance of its neutral duties toward a belligerent would not be observing a real neutrality.
Yet benevolent neutrality may be an actual political fact. The neutrality of Germany toward Russia was confessedly "friendly" during the Russo-Japanese War. The German Government failed to prevent (if, it did not, indeed, encourage) the sale to Russia of a number of transatlantic steamers belonging potentially to its auxiliary navy, and it appears to have permitted the exportation overland of torpedo boats to Russian territory.
As stated above, a state desiring to remain neutral is certainly bound to discharge its neutral obligations. But it is not legally bound to insist upon the observance of its neutral rights except in so far as these involve a performance of neutral duties. There is here a large sphere within which neutral statesmen may act at their discretion and be 1 Jure Belli ac Pacis, lib. III, cap. 17.
2 Int. Law, II, pp. 160-61. Westlake cites with apparent approval the views of Lorimer as set forth in his Institute of the Law of Nations, II, Bk. IV, ch. 19. Lorimer considers neutrality or non-participation in belligerency justifiable only in the following cases:
(1) involuntary ignorance of the merits of the quarrel; and (2) impotence or physcal inability to participate in the war.
3 Von Bülow, Imperial Germany, p. 81. Von Bülow claims that without "failing in strictly proper neutrality," the neutrality of Germany with respect to Russia was “even a shade more kindly than that of France."
properly influenced by motives of national policy or considerations of humanity or justice.
Thus, in this war we could not permit our territory to be used as a base of direct political or military activity in the interest of any belligerent, for that would involve a breach of neutral obligation as well as a violation of sovereign rights. Nor would motives of national honor and self-respect allow us to permit the massacre of those of our nationals who are non-combatants while on board common carriers on the high seas or to accept a mere money indemnity as compensation for the loss of our murdered dead.
But when we come to consider the questions involved in Great Britain's straining of the law of contraband, blockade, and continuous voyage, the case stands far otherwise. Mere property rights on however large a scale are here involved, and the case is not complicated by considerations of national honor or a violation of sovereign rights.
Questions relating to our rights as traders or property owners should be decided primarily from the standpoint of the national interest. In their decision we must, however, consider not merely the temporary or even the material interests involved, but problems of present and future policy. Of these the main problem relates to our future relations with that Power, which it is almost certain will remain the "Mistress of the Seas" for many years to come and with whom we have enjoyed close cultural and social relations for several centuries.
AMOS S. HERSHEY.
THE AMERICAN INSTITUTE OF INTERNATIONAL LAW
The JOURNAL has devoted several editorial comments to the American Institute of International Law, stating the reasons which suggested its foundation, the progress made towards its permanent organization, and the services which it is expected to, and believed by its partisans that it can, render to the development of international law in the Western Hemisphere.1 Without seeking to cover this ground again, it is proper to state that, with the approval and co-operation of a publicist in each of the twenty-one American Republics, such progress was made that on October 12, 1912, the Institute was declared founded. It was the hope, however, of its founders that it might have in the near future a formal
1 See comments in the JOURNAL for October, 1912, p. 949; January, 1913, p. 163; and October, 1915, p. 923.
meeting at which the necessary measures could be taken to complete its organization, to draft the program of its future activities, and to enable it to take its place among the scientific societies of the Americas. The American Institute is not the creation of a few enthusiasts to be imposed upon the publicists of America. It rests upon a national society established in the capital of every American Republic. On the 25th day of December, 1915, the last of the national societies to be formed in the twenty-one American Republics was founded, and on December 29, 1915, the American Institute was formally opened in connection with and under the auspices of the Second Pan American Scientific Congress. It was welcomed by the Honorable Robert Lansing, Secretary of State of the United States, and a member thereof, on the part of the Government of the United States; it was formally welcomed by His Excellency Eduardo Suárez-Mujica, Ambassador of Chile and the President of the Congress, a member thereof, on the part of the Congress; and it was formally welcomed by the Honorable Elihu Root, a member thereof and its honorary president, on behalf of the American publicists. After its opening session, it completed its organization by electing the five members recommended by each of the twenty-one national societies, and it adopted its constitution and the by-laws.
It is worth while to consider for a moment the relation between the national societies and the Institute, because when that is understood, it will be seen that the Institute, instead of being created from above and superimposed upon the publicists of different countries, in reality is nothing more nor less than a scientific body composed of a committee of five members of each national society and is in this sense their representative. This is clearly stated in the third article of the constitution, which reads as follows:
The American Institute of International Law is composed of committees or delegations of national societies of international law, established in the different American Republics and which it receives as affiliated with it, and of which national societies it is the perpetual representative.
The relation again is indicated in Article 4, devoted to national societies, which says that
The affiliated national societies propose the members to be elected by the Institute. The members of the national societies forming part of the Institute constitute in their country a committee of direction of the said society. This committee forms the international bond of union between the national society and the Institute.
The committee communicates either directly or indirectly by means of the Sec
retary General of the national society with the Secretary General of the Institute, sending him the reports of the said national society, or indicating the progress of the work undertaken by the national society.
The Secretary General of the Institute communicates the said reports to the different national societies.
From this it is apparent that the American Institute is the agent of the different national societies in which each national society is represented by five of its members recommended by the society itself, and that these five members regard themselves as a bond of union between the Institute, on the one hand, of which they are members, and the national society on the other hand, of which they are likewise members. The Institute is thus composed of five members from each national society, making 105 in all. The governing board consists of the officers and two members, forming the Council of Direction, which is thus composed:
Honorary President, Elihu Root.
President, James Brown Scott.
Secretary General, Alejandro Alvarez, Chile.
Treasurer, Luís Anderson, Costa Rica.
Elected Members, Antonio Bustamante, Cuba; Joaquin de Casasus, Mexico.
The members are for the most part former ministers of foreign affairs, diplomats, members of the Permanent Court of Arbitration, delegates to the Hague Peace Conferences, professors of international law, judges, and publicists.
Many projects were presented at the recent meeting by the members, and they will be assigned for study and report by different committees, and in many instances they will be considered by the national societies. It is interesting in this connection to note that Honorable Robert Lansing, Secretary of State, requested the Institute, composed exclusively of publicists from neutral nations, to take up, consider and report upon the question of neutrality, as appears from the following memorandum, which, in virtue of its importance, is given in full:
January 3, 1916.
At the first meeting of the Institute I had the honor to direct attention to the imperfect code of rules which define and govern the relations between belligerents and neutrals. These rules, which have grown up during the past one hundred and twentyfive years and have been in some cases differently interpreted by courts of different
countries, have been frequently found inadequate to meet new conditions of warfare, and as a result every war has changed, modified or added to the rules, generally through the process of judicial decisions. The prize courts of belligerents have thus become the interpreters of belligerent rights and neutral obligations, and their interpretations evidence an unconscious prejudice arising from over-appreciation of the needs of the belligerent. Writers on international law have relied upon these prize court decisions in dealing with the subject of neutrality so that they have laid down rules formulated indirectly from a belligerent's point of view. In addition to these influences affecting a code to govern the conduct and treatment of neutrals, international conferences and congresses have generally confided the drafting of rules relating to belligerent and neutral rights to military and naval experts who naturally approach the subject from the belligerent's standpoint. Thus, judicial decisions, text writers, and international agreements have given all the advantage to the belligerent and have shown little regard for the rights of neutrals.
It would appear that it is time to reverse this process of treatment of the subject of neutrality and to deal with it from the point of view of the neutral.
I would, therefore, suggest that a committee be appointed to study the problem of neutral rights and neutral duties seeking to formulate in terms the principle underlying the relations of belligerency to neutrality rather than the express rules governing the conduct of a nation at war to a nation at peace.
I would further suggest that the subject might be advantageously divided into two parts, namely, the rights of neutrals on the high seas, and the duties of neutrals dependent upon territorial jurisdiction.
In view of the past year and a half of war the present time seems particularly opportune to study this question and this Institute being composed of members from neutral nations is especially fitted to do this from the proper point of view and with the definite purpose of protecting the liberty of neutrals from unjustifiable restrictions on the high seas and from the imposition of needless burdens in preserving their neutrality on land.
The Institute accepted the proposal of Mr. Lansing, and will consider and report at a later date upon the subject.
It adopted a statement, to be known as its declaration of the rights and duties of nations, for the guidance of its members in stating the point of view from which it approaches questions, and the principles which will guide its conduct. The declaration adopted January 6, 1916, follows:
DECLARATION OF THE RIGHTS AND DUTIES OF NATIONS ADOPTED BY THE AMERICAN INSTITUTE OF INTERNATIONAL LAW AT ITS FIRST SESSION IN THE CITY OF WASHINGTON, JANUARY 6, 1916
WHEREAS the municipal law of civilized nations recognizes and protects the right to life, the right to liberty, the right to the pursuit of happiness, as added by the Declaration of Independence of the United States of America, the right to legal